COURT OF APPEALS OPINIONS

Floyd Woody vs. Joy Woody
E2001-02078-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Thomas R. Frierson, II
In this case from the Chancery Court of Hamblen County the Appellant, Floyd Michael Woody contends that the Trial Court erred in amending a final judgment for divorce to include one half of his pension fund as part of the marital property to be awarded the Appellee, Joy Darlene Woody. The judgment of the Trial Court is affirmed as modified.

Dept. of Children's Srvcs vs. T.M.K.
E2000-02840-COA-R3-JV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: John B. Hagler, Jr.
The State of Tennessee, through the Department of Children's Services, seeks to terminate the parental rights of T.M.K. and G.L.K., as to their children, E.K. (d.o.b. 1/3/88), C.K. (d.o.b. 1/17/90), and twin daughters, A.K. and E.K. (d.o.b. 5/4/92). The Trial Court found the State had carried the burden of proof by clear and convincing evidence as to grounds for termination, as well as the best interest of the children. We affirm.

Larry Parrish vs. Robert Marquis
E2002-01131-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Dale C. Workman
In this appeal from the Circuit Court for Knox County the Appellants, Larry E. Parrish and Larry E. Parrish, P.C., contend that the Trial Court erred in dismissing their cause of action upon grounds that it was not timely filed under T.C.A. 28-1-105(a). We affirm the judgment of the Trial Court.

State vs. Steven Arrington
E2002-00249-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: James E. Beckner
In this case from the Greene County Criminal Court the Appellant, Steven Keith Arrington, a juvenile, contends that there was insufficient evidence to support the jury's finding that he was guilty of aggravated kidnaping. Mr. Arrington also asserts that, assuming his conviction was proper, the Trial Court erred in failing to sentence him to an indeterminate commitment. We affirm the judgment of the Trial Court and remand.

Alvin Mays vs. Helen Mays
E2001-02630-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Thomas R. Frierson, II
In post-divorce action, the Trial Court changed from the mother to the father, the role as primary custodian of the minor child. On appeal, we affirm.

William Duty vs. Joseph Daugherty
E2001-02861-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Billy Joe White
In this boundary line dispute, the Trial Court established the boundary line between the parties' properties based on testimony that prior owners had agreed on the location of the boundary, which altered the boundary established by an accurate survey. We reverse.

Billy Allan Braswell, et ux vs. AC and S, Inc., et al
E2002-00093-COA-R9-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Wheeler A. Rosenbalm
The trial court allowed plaintiff to add seller as party to products liability action more than one year after injury and denied seller summary judgment on defense of the statute of limitations. We affirm.

The Oceanics Schools vs. Clifford Barbour, Jr.
E2002-00181-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Sharon J. Bell
This matter is before us on the petition of the plaintiff for a rehearing pursuant to Tenn. R. App. P. 39.

Kelso Oil vs. East West Truck Stop
E2001-02090-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Sharon J. Bell
This main issue in this appeal involves an Unconditional Guaranty signed by Frank Webb ("Webb"), the president and owner of East West Truck Stop, Inc. In this document, Webb guaranteed the debt of the "buyer", which was identified as "Frank Webb d/b/a East West Truck Stop." The "buyer", however, was the corporate entity, East West Truck Stop, Inc. The Trial Court concluded the parties intended for the document to state the "buyer" was the corporate entity and entered judgment against Webb personally. Webb appeals, claiming the Trial Court improperly used parol evidence to supply an essential term of the Unconditional Guaranty (i.e. the identity of the "buyer") in violation of the Statute of Frauds. We affirm.

State ex Rel. Dorothy Phillips vs. James Phillips
E2001-02081-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Billy Joe White
This is a post-divorce case involving child support issues. James Daniel Phillips ("Father") appeals the order below, in which the trial court held that it lacked the authority to reduce the child support arrearage due Father's former spouse, Dorothy Ellen Phillips ("Mother"). Father argued below that he had recently discovered that one of his "children" is not actually his biological child. He contends that this entitles him to the requested relief. Father further challenges the trial court's refusal to declare his 1990 divorce judgment invalid on the ground that it was not signed by Father who was then proceeding pro se. We affirm.

E2001-02326-COA-R3-CV
E2001-02326-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Billy Joe White

State ex rel. Anne Pope vs. United States Fire
E2002-01092-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: W. Frank Brown, III
This is a suit by the State of Tennessee, ex rel. Anne B. Pope, in her official capacity as Commissioner of the Tennessee Department of Commerce and Insurance, against the following Defendants: United States Fire Insurance Company; United States Fidelity and Guaranty Company; Employers Reinsurance Corporation; Utica Mutual Insurance Company; Insurance Company of North America; and Safeco Insurance Company of America. The suit seeks to require the Defendant Corporations to deposit with a Receiver approved by the Chancery Court the principal amount of the last rider to a bond that they had executed to ensure payment of worker's compensation benefits that might be owed by North American Royalties, Inc., and its subsidiaries, Wheland Holding Company, Inc., Wheland Manufacturing Company, Inc., and Wheland Foundry, LLC. The suit was initiated because North American Realties, Inc., which sought bankruptcy protection, was self-insured pursuant to T.C.A. 50-6-405. A number of employees who contended they were entitled to benefits under the Worker's Compensation Statute intervened, insisting that the Companies which had executed the bonds were liable for the aggregate amount thereof, rather than the amount shown on the last rider issued as to the bonds in question. The Trial Court found in favor of the Insurance Companies. We affirm.

Floyd Gabriel vs. Anna Hubbs
E2001-03102-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Billy Joe White
This is a will contest. Floyd Gabriel ("the contestant") filed this action contesting the validity of the purported last will and testament of his grandfather, Floyd A. Harmon ("the decedent") on the grounds of incapacity and undue influence. Following a bench trial, the court below declared the will invalid. Anna Faye Hubbs ("Hubbs"), the decedent's caretaker and the primary beneficiary under the will, appeals, arguing that the trial court erred in finding that she exercised undue influence over the decedent. In the alternative, Hubbs argues that any presumption of undue influence arising out of her relationship with the decedent was overcome by the clear and convincing proof that the decedent received independent advice before executing his will. We affirm.

Steven Belford vs. J & J Plastering
E2001-02575-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Jacqueline E. Schulten
Steven R. Belford (Plaintiff") sued Danny W. Cox ("Cox") and J & J Plastering, Inc., ("Company") after he was rear-ended by a vehicle owned by the Company and driven by Cox. The jury returned a verdict for $9,000 in favor of Plaintiff. Plaintiff appealed to this Court without first filing a motion for new trial. Plaintiff raises four issues on appeal, all of which center around the exclusion or admission of evidence at trial. Because Plaintiff did not raise these issues in a motion for new trial, we deem them to be waived and dismiss this appeal.

Kenneth Nelson v. Metric Realty
M2000-03204-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Irvin H. Kilcrease, Jr.
Plaintiffs appeal the action of the trial court in converting a T.R.C.P. Rule 12.02 motion of those referred to as "affiliated defendants" into a T.R.C.P. Rule 56 motion and then granting it, and in sustaining a motion for summary judgment in favor of those described as "advisor defendants." The action against all Defendants asserted tortious interference with contract. Defendants appeal the trial court action in overruling their motion for summary judgment based upon the statute of limitations. We affirm the action of the Chancellor in granting summary judgment to the "affiliated defendants" and in granting the motion for summary judgment of the "advisor defendants." We further hold that the statute of limitations had expired as to all defendants. As modified, the judgment of the trial court is affirmed.

Paul Summers v. Cherokee Children & Family Services
M2001-00880-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Irvin H. Kilcrease, Jr.
In this appeal, the Attorney General filed suit to dissolve two nonprofit public benefit corporations. Both the Attorney General and the nonprofit corporations filed motions for summary judgment. The trial court granted summary judgment for the Attorney General finding that the nonprofit corporations had abandoned their charitable purposes and devoted themselves to private purposes. The trial court ordered the appointment of a receiver to marshal and preserve the remaining assets. For the following reasons, we affirm the decision of the trial court.

Matthew Poliak v. James Adcock
M2000-02325-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Barbara N. Haynes
This appeal involves a dispute between a father and his adult daughter's live-in boyfriend. The boyfriend filed a personal injury suit against his girlfriend's father in the Circuit Court for Davidson County after the father assaulted him with a piece of two-by-four. The father admitted that he had assaulted his daughter's boyfriend but asserted the defenses of self-defense, provocation, and defense of property. In response to the boyfriend's motion for partial summary judgment, the trial court determined that the father had failed to produce evidence to substantiate any of these defenses. The father perfected this appeal after the trial court certified its order as final in accordance with Tenn. R. Civ. P. 54.02. We have determined that the trial court was correct when it determined that the father's evidence regarding the circumstances surrounding the assault could not, as a matter of law, support his affirmative defenses. Accordingly, we affirm the trial court.

Gale Smith & Co. v. The Governors Club
M2001-01616-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Timothy L. Easter
This is a breach of contract case. The defendant real estate developer developed a golf club. The plaintiff insurance broker entered into an insurance binder with the manager of the golf club. The "master" binder covered five separate properties with which the manager was involved. The binder listed another of the manager's entities as the insured. The manager was later terminated by the defendant and a new management company was hired to manage the golf club. The insurance broker then issued a separate policy naming the defendant as the insured and sent invoices for the unpaid premiums to the new management company. The management company declined to pay the premiums. The insurance broker then filed suit against the defendant. The trial court entered a judgment for the insurance broker for all unpaid premiums due under the insurance binder, plus interest. We affirm, finding that manager had the apparent authority to enter into an insurance contract and that there was a contract for insurance between the parties.

Vernessa Ekelem vs. Ifeatu Ekelem
W2001-02986-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Ron E. Harmon
This is a divorce case. Both parties are physicians. Both have children from previous marriages, and they have three children together. The parties' three children were minors at the time of the divorce hearing. The father earned substantial income in 1996, which fell precipitously when he started his own medical practice in 1998. His medical practice, however, owns luxury vehicles, and the father owns a large home with significant acreage. The trial court found the father's earning capacity to be at the level of the mother's income, set child support based on that earning capacity, and established the father's parenting time with the parties' children. The father was ordered to assume the parties' tax debt, and to cease making derogatory remarks about the mother. On appeal, the father argues that the trial court erred in setting child support, in setting parenting time, in assigning the tax liability to him, and in enjoining him from making derogatory comments about the mother. We affirm as modified, and remand, awarding the mother attorney's fees for this appeal.

Daniel Goodwin vs. John Dunlap
W2002-00014-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: D'Army Bailey
This is a legal malpractice action originally filed by individual plaintiff and a corporation. The individual plaintiff was acting pro se for himself and also for the corporation. The trial court granted summary judgment to defendant based upon his affidavit that he complied with the standard of care representing the corporate plaintiff, that he had no attorney/client relationship with the individual plaintiff. No countervailing affidavit concerning the standard of care was filed by the plaintiffs and the dismissal of the corporation's case was also premised on the rule that a corporation cannot act pro se by a nonlawyer agent. Individual plaintiff's affidavit does not specifically refute defendant's affidavit concerning no attorney-client relationship between the individual plaintiff and defendant. Plaintiffs appeal. We affirm.

Felicia Webb vs. Ernest Gillespie
W2001-02828-COA-R3-JV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Howard W. Horne

Edward/James/Leigh Hutchinson vs. Nancy Neuman & James Day
W2001-02886-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Dewey C. Whitenton
This is a will construction case. The husband devised a life estate in land to his wife, and at her death, to his devisees. The husband devised other land in fee simple to his wife, and gave her the rest and residue of his estate. The husband died in 1954 and the wife died in 1998. The remaindermen under the husband's will argued that certain real property was included in the wife's life estate and, thus, at her death, devolved to them. The beneficiaries of the wife's will argued that the real property in question was not included in the life estate or mentioned in the husband's will, and thus the land went to the wife in fee simple by operation of the residue clause in the husband's will and should now devolve to them. The trial court found that the husband intended to include the land in question in the life estate to the wife. Therefore, the land devolved to the husband's devisees. The beneficiaries of the wife's estate appeal. We affirm.

Felicia Webb vs. Ernest Gillespie
W2001-02828-COA-R3-JV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Harold W. Horne

Dagmar Moss vs. Alvin Moss
W2001-02809-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Dewey C. Whitenton
Wife filed a complaint for divorce alleging inappropriate marital conduct and, in the alternative, irreconcilable differences, and husband filed a counterclaim for divorce on the same grounds. The chancery court awarded the wife an absolute divorce and alimony in solido in the amount of $1,000.00, to be paid toward her attorney fees, but denied wife's claim for alimony in futuro. Wife appeals. We affirm as modified and remand.

Norman Hamby vs. State
W2002-00928-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
This is a premises liability case arising from Plaintiff's fall into a ventilation pit on the University of Tennessee at Memphis (referred to herein as UT) campus when an aluminum grate covering the opening collapsed while Plaintiff was standing on it. The Commissioner of Claims of the Western Division held that the accident was not foreseeable and that UT did not have actual or constructive notice of the dangerous condition of the grating over the pit. Plaintiff appeals. We reverse and remand.